Lee v. Agricultural Insurance, 79 Iowa 379

Lee v. Agricultural Insurance

79 Iowa 379 | Iowa | 1890

Given, J. — I.

1. agency:ev¡dence On the trial, H. S. Lee was called as a witness by the plaintiff, and, having testified that h-e was agent for the defendant company,- and had countersigned this policy, stated that his authority was from the company, in writing, and then in his possession, in his pocket. Plaintiff then asked the witness: “Have you authority to cancel policies issued by this company at Webster City?” To which defendant objected as incompetent, and which was sustained, and whereupon plaintiff further inquired: ‘ ‘ Have you, in the course of your agency here, canceled policies of this company?” which was also objected to for the same reason, and objection sustained. There was no error in sustaining these objections. The writing was the best evidence of the witness’ authority from the company. It may be true, as contended, that, as between a party and third persons, the limit of the agent’s authority to bind the party is the apparent authority with which the agent is invested; yet these inquiries were as to actual authority, and not apparent authority. The writing was the best evidence, and should have been produced.

'opinions witness not qualified0 be

Plaintiff inquired of the witness, H. S. Lee:

“Knowing just what facts you did about this mortgage, you would not consider it as increasing the hazard?” to which defendant objected as . incompetent, an<3- not the subject of expert testimony, which was sustained. Plaintiff then offered to prove by the witness that the facts in ’ reference to this mortgage are not regarded by insurance men as an increase of hazard, which was also objected to, for the same reasons, and objection sustained. In Russell v. Insurance Co., 78 Iowa, 216, we held that, on a question as to whether a certain use of a barn increased the risk, the opinion of the witnesses was proper to be taken. It- is, however, sufficient answer to these objections that it was not made to *382appear that the witnesses had any knowledge or experience with regard to hazards, or as to what was considered by insurance men as increasing hazards. The objections were properly sustained.

„ „ . crease'of risk by mortgage, II. Appellant’s further contention is that it was a question of fact as to whether the giving of the chattel mortgage increased the risk, or decreased the defendant’s security, and that this question should have been left to the jury. The case is clearly distinguishable from that Russell v. Insurance Co., 71 Iowa, 69. In that case incumbrances existed at the time the policy was issued. The incumbrances were changed during the life of the policy by payments and renewals, and a part of the land had been sold. Hence it was a question of fact as to whether the hazard had been increased or security decreased. But there is no question in this case. The giving of the chattel mortgage is, beyond question, an increase of the risk, and a decrease of the defendant’s security, because thereby the assured lessened his interest in the insured property. It makes no difference that a right of action had not accrued upon the mortgage. It was a depletion of the assured ’ s interest in the property, to the extent thereof, from its execution and delivery.

III. Appellant contends that it should have been left to the jury to say whether the defendant’s agent Lee did not have such knowledge of the giving of the mortgage as constituted a waiver on the part of the defendant. As requested, we have read the whole of the testimony of this witness; and we fail to gather therefrom that the witness desires to be understood as saying that he had any knowledge of the giving óf the mortgage at the time it was given, or to have given any consent thereto. But, if he had, there is an entire absence of testimony tending to show that the defendant would be bound by such knowledge or consent, as the extent of Lee’s authority is not made to appear. We find no error in the action of the district court, and the judgment is, therefore, Affirmed